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Protest Trans Pacific trade negotiations in Leesburg Virginia

Posted Sep. 7, 2012 / Posted by: Bill Waren

For 10 days, the Trans-Pacific Partnership -- a colossal, job-destroying free trade agreement -- will be negotiated in secret in Leesburg, Virginia. This massive trade agreement would threaten essential environmental protections as a favor to exploitative corporate interests. Backed by hundreds of corporate lobbyists, the TPP negotiators are cutting deals in private, away from the eyes of the public they are supposed to represent.

From September 6 through 16, trade negotiators from around the Pacific are meeting behind closed doors for the 14th round of TPP negotiations. Singapore, Malaysia, Chile, New Zealand, Brunei, Australia, Peru, Vietnam and the United States are participating in the talks in Leesburg Virginia. Canada and Mexico will participate in later negotiations. Japan and others may seek to join in the future.

The TPP negotiations are conducted in secrecy, even though that is no longer a standard practice. The World Trade Organization, for example, posts negotiating text on its website. Senator Ron Wyden, chair of the Senate Finance Subcommittee on Trade, and many other members of Congress from both parties have complained that they have significant problems in accessing the negotiating text and in communicating with the U.S. Trade Representative’s office on the progress of negotiations. Two-thirds of the Democrats in the House of Representatives have written to Ron Kirk, the U.S. Trade Representative, complaining that they have been denied access to the negotiating text.

Negotiators in Leesburg are expected to focus on whether the environment chapter will include enforceable obligations for parties to implement domestic environmental laws and abide by global environmental agreements. Friends of the Earth strongly supports an environment chapter with tough enforcement mechanisms. The U.S. delegation agrees with us and other green groups that environmental obligations should be enforceable through dispute resolution in the same way trade obligations are enforced. Most of the other delegations appear to be cautious about this approach or are resisting the idea of enforceable environmental standards outright. U.S. negotiators must not back down from their commitment to make environmental obligations enforceable.

In addition, the TPP environment chapter must include language to address biodiversity conservation; illegal logging and wildlife trade; economic subsidies that lead to overfishing; and illegal, unreported, or unregulated fishing more generally.

If the TPP negotiations result in adoption of an investment chapter based on the leaked text, multinational investors would be able to sue governments directly when they believe domestic laws or regulations, including environmental measures, impinge upon broad investor rights provided to them by the agreement. The substantive and procedural rights of “property” are far more broadly defined in the leaked text than in U.S. constitutional law or the law of other nations.

Greater substantive rights follow from, among other provisions, a sweeping definition of investment that includes the expectation of gain or profit. This potentially allows regulations that incidentally thwart multinational corporations’ expectations of future profits to be treated as if they were a government "taking" -- similar to how a government is required to pay a landowner fair value for taking property to widen a highway. By contrast, it is very difficult for a U.S. company to use U.S. courts to challenge an environmental regulation for reducing its profits, so long as there is some “rational basis” for the regulatory policy.

A TPP investment chapter based on the leaked text would also establish greater procedural rights for giant corporations and other multinational investors. The usual practice in international law is for claims to be arbitrated on a government-to-government basis, but the leaked text would put multinational investors on the same level as nation-states by allowing them to sue directly. In effect, the leaked text would create a separate “court” for international capital in which the “judges” would be business-friendly arbitrators appointed on an ad hoc basis. These arbitrators often serve as corporate plaintiff’s counsel in one investment case and “judge” in the next.

Other TPP chapters

Most of the chapters have not been leaked, but many are likely to pose serious environmental concerns. The TPP government procurement chapter, for example, may hamstring the ability of governments to build environmental and other social criteria into their purchasing decisions. International rules on government procurement often seek to confine public purchasing decisions to economic and engineering criteria such as price and performance, thus constraining green purchasing policies by government, especially those that require that the means of producing a good or service meet environmental standards.

An underlying reason why so many TPP chapters are bad for the environment is the changing nature of U.S. trade agreements. Starting with the NAFTA and WTO deals in 1994, trade agreements, including the TPP, deal not only with "at the border" discrimination, but also impose rules related to government regulation, taxation, purchasing, and economic development policies that are regarded as potential “beyond the border” or non-tariff barriers to trade. These rules related to non-tariff barriers to trade seek to encourage international commerce by promoting deregulation, expansion of property rights, and, in the view of Friends of the Earth, principles of what might be described as market fundamentalism.

In the coming days of these negotiations, the United States is expected to push for a TPP deal that not only integrates the trade policies of Pacific nations, but also deregulates economies in the region. In the view of Friends of the Earth, the U.S. negotiating agenda, with its laissez-faire approach, would severely limit the role of governments in environmental protection. The question is whether this is what the public wants. Friends of the Earth believes that the public would object loudly.

One effective means of answering this question would be to release of the secret negotiating text of the TPP. In that way, the public and parliaments of the Pacific region could make an informed judgment.

If you don’t live in the area or can’t make it to Leesburg on Sunday, then consider talking to members of your congressional delegation about the problem. Or, you might want to write a personal letter to your senators and representative, protesting the secrecy and special interest deal cutting in TPP negotiations, based on the information in this blog post and the links provided in it to other documents. One sincere personal note is worth more than hundreds of form letters to members of Congress.

Now is the time to expose the dangers of the TPP. While negotiators are hidden away, we'll be drawing attention to what's really at stake -- our jobs, our health and our environment. We hope you will help Friends of the Earth raise public awareness about the TPP and the risk it presents to the planet.